JUDGMENT: This second appeal is preferred from the judgment and decree of the learned Principal District Judge, North Arcot, Vellore dated 17.1.1990 and made in A.S.No.149 of 1989 against the judgment and decree of the learned District Munsif, Gudiyattam, made in O.S.No.2 of 1983 dated 21.12.1988. 2. The plaintiffs/ appellants filed a suit seeking for declaration of the title to the suit property marked as A, B, C, D in the plaint plan with a consequential permanent injunction with the following averments. The suit property originally belonged to one Srinivasa Mudali, Vajiram and Ramalingam and their forefathers. They were enjoying the same till they sold it to the plaintiffs’ father S.Muthumanicka Mudaliar in the year 1956. It was a vacant site measuring 96’ north to south and 28 1/2’ east to west i.e., 9 1/2 yards and 32 yards. Plaintiffs and their father were enjoying the same without any interruption from anybody. In the family partition it fell to the plaintiffs’ share. While so in 1965, the plaintiffs and their family started construction of a house in the property purchased. The plaintiffs have also filed a rough plan showing the constructed portion of the house and also the disputed suit property. The plaintiffs’ house was constructed according to “Manaiadi Sastram”. On the eastern side of their house, there was a house belonging to Vajiram Mudaliar and others who were the plaintiffs’ vendors. Since the suit property and other property belonged to them, they had their rain water right over the plaintiffs’ house. For that they were having 1 1/2’ on the western side of their western wall of their house. Since the street view fell on the plaintiffs’ house, they constructed their house in such a manner so as to avoid the same. That was why they have left 1 1/2’ vacant site on the western side of their western wall. This was the suit property. After finishing the house construction, the plaintiffs’ family constructed a drainage cement channel in the suit property marked as A, B, C, D, in the plan in the year 1967. The portion marked as A, B, C, D, in the plan absolutely belonged to the plaintiffs and their family only. They have perfected their title to the suit property by adverse possession also. The plaintiffs have no other alternative way of drainage. The portion marked as A, B, C, D, in the plan absolutely belonged to the plaintiffs and their family only. They have perfected their title to the suit property by adverse possession also. The plaintiffs have no other alternative way of drainage. The defendants were their own pangalis, and were having their vacant site on the west of the suit property. The defendants have not objected the plaintiffs from constructing the drainage channel in A, B, C, D, portion in 1967. In fact the defendants have also assisted in putting foundation, etc. The defendants were now estopped by their conduct from claiming any right over the suit property. For the past 15 years, the defendants have not interfered with his peaceful possession and enjoyment of the suit property by the plaintiffs. Due to the reasons best known to them, they were claiming right over A, B, C, D, portion. The defendants were putting go-bar gas plant in their vacant site. While constructing the necessary wall, the defendants were trying to trespass into the suit property and thereby tried to dismantle the plaintiffs’ drainage on 26.12.82. The same was resisted by the plaintiffs. A panchayat was convened and on their advise the defendants’ construction was stopped till the dispute was solved. The defendants’ main idea was to stop the drainage. The defendants gas construction was on and abutting the A, B, C, D, portion. Hence the plaintiffs were obliged to file the suit for the above said reliefs. 3. The said suit was contested by the defendants by filing a written statement with the following averments. The suit as framed was not maintainable either in law or on facts. The plaintiffs have constructed their house as per “Manaiadi Sastram”, which was false. The contention of the plaintiffs that they left 1 1/2’ vacant site on the western side of their western wall to avoid “Therukuthu” was false and the same was invented for the purpose of this case. The plaintiffs had no right or title over the suit property on vacant site beyond their western wall. The western wall of the plaintiffs’ house was the western boundary of the plaintiffs’ house and beyond the western wall, the plaintiffs’ had no right or title over any piece of land on the vacant site. The plaintiffs had no right or title over the suit property on vacant site beyond their western wall. The western wall of the plaintiffs’ house was the western boundary of the plaintiffs’ house and beyond the western wall, the plaintiffs’ had no right or title over any piece of land on the vacant site. It was false to allege that the plaintiffs have constructed a drainage in the suit property marked as A, B, C, D, in the year 1967, and equally false that the portion marked as A, B, C, D, belonged to the plaintiffs and their family absolutely. The plaintiffs could not claim that they were the absolute owners of the suit property and also perfected title to the same by adverse possession. It was equally false to allege that the plaintiffs have no other alternative way of drainage. The plaintiffs had other way of drainage also. It was false to allege that the defendants have had their vacant site on the west of the suit property. The suit property itself belonged to the defendants. The plaintiffs have no right or title over the same. It was not correct to state that the defendants had not objected to the plaintiffs from constructing the drainage channel in the A, B, C, D, portion. First of all the plaintiffs themselves have not constructed the alleged drainage channel in the year 1967. The same was constructed only in the year 1975 with the consent and permission of the defendants only, since the plaintiffs’ father happened to be a close relative of the defendants. It was the plaintiffs’ father alone with the permission of the defendants, constructed the so called suit drainage channel in the year 1975. It was false to allege that the defendants have assisted the plaintiffs in putting foundation, etc. and equally false, that the defendants were estopped by their conduct from claiming any right over the suit property. It was not correct to state that the defendants had interfered with the peaceful possession and enjoyment of the suit property by the plaintiffs for the past 15 years. The defendants were putting up Gobar Gas Plant within their own property only and the suit property belonged to them only. There was no need and necessity for the defendants to trespass into the suit property, since the same belonged to the defendants. The defendants were putting up Gobar Gas Plant within their own property only and the suit property belonged to them only. There was no need and necessity for the defendants to trespass into the suit property, since the same belonged to the defendants. The construction of the Gobar Gas Plant by these defendants would not in any way affect the plaintiffs’ suit drainage channel. There was no cause of action for the suit and hence the suit has got to be dismissed as one without merits. 4. On the above pleadings, the trial Court framed the necessary issues, tried the suit and decreed the same and prayed for. In appeal by the defendants, the learned Principal District Judge, Vellore reversed the judgment of the trial Court and dismissed the suit with costs. Aggrieved plaintiffs have preferred this second appeal. 5. At the time of admission, the following substantial questions of law were formulated by this Court for consideration: (1) Is the lower appellate Court right in dismissing the suit on the ground that the appellants are not entitled to prescribe vital by adverse possession as held by the trial Court since the appellants have also claimed title over the suit property under Ex.A-1 sale deed? (2) Is the lower appellate Court right in inventing a new plea namely easementary right of necessity which was never pleaded by the appellants and dismissed the suit by the ground of contradicting pleadings? (3) Is the lower appellate Court right in holding that the respondents are not estopped from denying the rights of the appellants? 6. What is challenged herein is the judgment of the lower appellate Court dismissing a suit by reversing the judgment of the trial Court wherein a decree was granted in favour of the appellants herein. (3) Is the lower appellate Court right in holding that the respondents are not estopped from denying the rights of the appellants? 6. What is challenged herein is the judgment of the lower appellate Court dismissing a suit by reversing the judgment of the trial Court wherein a decree was granted in favour of the appellants herein. Arguing for the appellants, the learned counsel would submit that the learned District Judge should have confirmed the well considered judgment of the trial Court; that the lower appellate Court has erred in projecting a case of easementary right of necessity which was never pleaded by the plaintiffs; that it is pertinent to note that the appellants were in possession of the suit property for more than a statutory period; that it has been found that there was a permanent cement drainage pipe in the suit property and then it should have been held that the possession of the plaintiffs was that of permissive; that the lower appellate Court should have given weight to the deposition of P.W.2 which was a neutral and disinterested; that the first appellate Court has erred in holding that the burden of proof lies on the plaintiffs to show that their possession over the suit property was not permissive; that the lower appellate Court has failed to note that the defendants have raised the plea of adverse possession and the defendants were enjoying the suit property from the year 1961; that the learned Principal Judge has erred in holding that the reliefs pleaded by the plaintiffs were mutually contrary to each other; that the learned Principal District Judge should have decreed the suit as prayed for and hence the judgment of the lower appellate Court has got to be set aside and the judgment of the trial Court has got to be restored. 7. 7. Disputing all the above contention of the appellants’ side, the learned counsel for the respondents would submit that the trial Court without appreciation of evidence oral and documentary has granted a decree in favour of the appellants; that when the same was appealed against, the learned District Judge has rightly set aside the same and has dismissed the suit denying the reliefs; that the appellants claimed title to the suit property by relying on the title deeds; that the Advocate Commissioner appointed by the lower Court had made inspection of the property after due notice to the parties and has filed a report; that a perusal of the report would indicate that the drainage A, B, C, D, was well outside the property of the appellants; that the lower appellate Court has rightly dismissed the suit on the ground that the appellants were not entitled to prescribe title by adverse possession as held by the trial Court, since the appellants had also claimed title over the suit property under Ex.A-1 sale deed; that the lower appellate Court was perfectly correct in holding that the respondents was not estopped from denying the rights of the appellants and thus the plaintiffs who claimed title to the property have not proved the same by adducing any evidence and in view of the same, the lower appellate Court was perfectly correct in dismissing the suit. 8. As seen above, this second appeal is an outcome of the judgment of the lower appellate Court refusing to grant the relief of permanent injunction which was originally granted in favour of the appellant by the trial Court. From the pleadings it is clear that the appellants sought the relief of permanent injunction to restrain the respondents from interfering with their possession of the suit property shown as A, B, C, D, in the plaint plan measuring east to west 1 1/2 feet and north to south 96 feet with cement drainage channel. From the pleadings it is clear that the appellants sought the relief of permanent injunction to restrain the respondents from interfering with their possession of the suit property shown as A, B, C, D, in the plaint plan measuring east to west 1 1/2 feet and north to south 96 feet with cement drainage channel. It was their specific case that their father purchased a vacant site measuring 96 feet north to south and 28 1/2 feet east to west under Ex.A-1 dated 19.4.1956 from Srinivasa Mudali, Vajiram and Ramalingam and he constructed his house in the year 1967 and that he left 1 1/2 feet vacant site on the western side of the western wall wherein he constructed a cement drainage channel which is the subject matter in the suit, shown as A, B, C, D, in the plan. The suit property shown as A, B, C, D, measuring 1 1/2 feet east to west and 96 feet north to south was a part and parcel of the property purchased by the plaintiffs’ father. It was not disputed by the respondents that the plaintiffs’ father purchased the vacant site with the above measurements. But the property of the plaintiffs ended with the western wall and the property situated on the west of the western wall belonged to the respondents in which the appellant had no right and thus the said A, B, C, D, cement drainage channel was made only with their permission and hence they could not claim any title to the property. 9. The contention of the appellants that A, B, C, D, portion wherein the cement drainage channel is situated lie within their property was negatived by both the Courts below, only after proper analysis of the available evidence. Both the Courts have recorded a finding that the western boundary of the appellants’ property was their western wall and on the west of it, they had no property and this A, B, C, D, cement drainage channel was situated on the west of the western wall i.e., which was not within their property. P.W.1 in his cross examination had candidly admitted that his father constructed the house in the entire vacant site. It is not disputed that the appellants’ father only on approval of the plan has constructed his house in the vacant site. P.W.1 in his cross examination had candidly admitted that his father constructed the house in the entire vacant site. It is not disputed that the appellants’ father only on approval of the plan has constructed his house in the vacant site. But the appellants have not filed any plan showing the measurement of the said construction. The appellants have not taken any steps for appointment of a Commissioner to note the physical features in order to show that A, B, C, D, cement drainage channel was within the extent of the property purchased by their father. The learned counsel for the appellants would fairly concede that the appellants could not prove that the said A, B, C, D, cement drainage channel construction in question was within the property purchased by the plaintiffs’ father under Ex.A-1. But the learned counsel would add that the said A, B, C, D, cement drainage channel construction was made even at the time of the construction of the house in 1967 and thus the appellants have perfected their title to the suit property by the open, continuous and peaceful possession and enjoyment of the same for more than 15 years and thus they have perfected their title to that portion of the property by adverse possession. This contention of the appellants’ side cannot be countenanced in view of the lack of the requisite pleadings and the necessary proof therefor as required in law. As pointed out above, the plaintiffs sought the relief of declaration in respect of that A, B, C, D, cement drainage channel stating that it was situated within their property and thus they were entitled to the same. When they could not prove the same, they gave up that stand and would say that they acquired title by adverse possession. It has been held in Lod Balagundas v. Kothandapani, 84 L.W. 72, as follows: “It is not open to a plaintiff, who came to the Court with a specific case and with a specific ground for relief to of go on the man abandon the same and seek to claim the same relief on facts alleged by the defendant.” 10. The plaintiffs have filed the sale deed that was executed in favour of their father under Ex.A-1 dated 19.4.1956. The plaintiffs have filed the sale deed that was executed in favour of their father under Ex.A-1 dated 19.4.1956. In order to prove that the house was constructed in the year 1967, the best piece of evidence would be the licence granted by the municipality and the approved plan for the said construction. But the appellants have not filed the same. If the approved plan was filed by the plaintiffs, it would have not only shown the period of construction, but also the A, B, C, D, cement drainage channel in question. The non-production of the said approved plan for the house construction of the appellants would clearly lead to the interference that if the said document was filed, it would go against the case of the appellants. As rightly pointed out by the lower appellate Court, there was no reference to this A, B, C, D, construction in the partition deed and it is pertinent to note that the partition entered into the parties was only in the year 1979, as evidenced by Ex.A-2. It remains to be stated that the appellants have not pleaded as to when the said alleged adverse possession commenced. Except what is stated above, the appellants have not pleaded in the plaint as to the adverse possession nor have they adduced any satisfactory evidence to accept the same. The Hon’ble Apex Court has held in the case reported in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, A.I.R. 1968 S.C. 1413, as follows: “Head Note: (A) Evidence Act (1872), Secs.114(g) and 103 - A party in possession of best evidence which would throw light on the issue in controversy withholding it - Court ought in controversy withholding it - Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him - Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. A.I.R. 1917 P.C. 6(8) and Civil Appeal No.941 of 1965, dated 15.4.1968 (SC) and A.I.R. 1915 P.C. 96(98), Rel. on.” In the instant case, the onus of proof lies on the appellants. Knowing fully well that the said piece of evidence would clearly throw light on the issues in controversy, the appellants have purposefully withheld the same and hence it is a fit case to draw the adverse inference against them. on.” In the instant case, the onus of proof lies on the appellants. Knowing fully well that the said piece of evidence would clearly throw light on the issues in controversy, the appellants have purposefully withheld the same and hence it is a fit case to draw the adverse inference against them. The non production of the approved plan for the alleged construction and the fact that there was no reference to A, B, C, D, construction in the partition that took place in the year 1979 would all go to show that this A, B, C, D, construction should have come into existence in a subsequent point of time and certainly not in the year 1967 as pleaded by the plaintiffs and thus it would be clear that without sufficient and necessary requisite pleadings and the proof therefor, the appellants cannot lay a claim that they were entitled to the property by way of adverse possession. The learned counsel brought to the notice of the Court that the appellants had no other alternative way of drainage. It is true that in a given case though the legalistic term of easement of necessity has not been specifically pleaded, if the other pleadings and circumstances would indicate the same, the Court can consider the request of the party. But in the instant case, it has to be mentioned that the plaintiffs have come forward with the suit seeking for declaration of the suit property based on their document of title viz. Ex.A-1. In the decision reported in E.Elumalai Chetty v. Naina Mudali and others, A.I.R. 1987 Mad. 102, it has been held thus: “The conception of easementary right cannot got with the claim of title and both area contradictory to each other. A title to the property and a right of easement over it are conceptions totally distinct and contradictory to each other. One is the right to possess, enjoy and use the land in assertion of that right and to the exclusion of another; while a right of easement is a right in, to or over the property of another. One is a personal right while the other is annexed to and claimed over the land of another and, it runs with it. A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of the other. One is a personal right while the other is annexed to and claimed over the land of another and, it runs with it. A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of the other. The plaintiff having failed on the question of title specifically pleaded by him cannot turn round and ask for reliefs on the basis of easement.” The Court is of the view that the appellants herein could not seek the relief of easement of necessity since the conception of easementary right cannot go with the claim of title and both are contradictory to each other. The appellants are unable to show anything so as to call for any interference. The lower appellate Court was perfectly correct in dismissing the suit. Hence, the judgment of the lower appellate Court has got to be sustained. 11. In the result, this second appeal fails and the same is dismissed with costs. The judgment and decree of the trial Court are confirmed.